State v. Green, No. 2700

CourtCourt of Appeals of South Carolina
Writing for the CourtHOWELL
Citation327 S.C. 581,491 S.E.2d 263
Decision Date07 May 1997
Docket NumberNo. 2700
PartiesThe STATE, Respondent, v. John GREEN, Appellant. . Heard

Page 263

491 S.E.2d 263
327 S.C. 581
The STATE, Respondent,
v.
John GREEN, Appellant.
No. 2700.
Court of Appeals of South Carolina.
Heard May 7, 1997.
Decided July 21, 1997.

[327 S.C. 583] Assistant Appellate Defender M. Anne Pearce, of South Carolina Office of Appellate Defense, Columbia, for appellant.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Caroline Callison Tiffin, Columbia; and Solicitor Wade S. Kolb, Jr., Sumter, for respondent.

HOWELL, Chief Judge.

John Green was indicted on two counts of first-degree criminal sexual conduct, one count of second degree criminal sexual conduct with a minor, and one count of committing a lewd act upon a child, all arising from incidents involving his eleven-year-old daughter. He was convicted of both counts of first-degree criminal sexual conduct and of the charge of committing a lewd act upon a minor. Green appeals, challenging only the trial court's denial of his motion for directed verdict on the first-degree criminal sexual

Page 264

conduct charges. Green does not challenge his lewd act conviction. We reverse and remand.

I.

Shortly before her eleventh birthday, the victim and her younger brother moved from New York to Lee County to live with Green. Green's house was small, with only one bedroom. The victim slept in the bedroom with Green, and her brother slept on the sofa in the living room. On the first night that the victim stayed with Green, she took a shower before going to bed. While the victim was still in the bathroom, Green used a pair of clippers to shave her pubic hairs. Green told her not to put on her nightgown and he rubbed baby oil all over her body, including her breasts and vaginal area. The victim finally went to sleep, but awoke to find Green performing oral sex on her.

According to the victim, Green performed oral sex on her approximately three times a week, every other week. Sometimes the victim was awake when the incidents began, and other times she would wake up to find him performing oral sex on her. The victim testified that Green's hands were on her [327 S.C. 584] shoulders during the assaults. She stated she tried to move once, but that Green told her to relax.

The victim also testified that Green would "feel" her--touching her bottom and breasts--and that Green clipped her pubic hairs on one other occasion. The victim testified that on one occasion he "stuck his penis halfway inside [her] vagina," but stopped when she told him it hurt. Approximately three months after she moved to Lee County, the victim reported the assaults to Green's former girlfriend.

Dr. Elizabeth Baker, who was qualified as an expert in the diagnosis of sexually abused children, testified at trial. Dr. Baker stated that the victim had inflamed pubic hair follicles and concluded that the condition was most likely caused either by shaving or cutting. Dr. Baker also testified that there was an interruption in the victim's hymen that was caused by some kind of blunt force penetrating trauma.

II.

On appeal, Green contends he was entitled to a directed verdict on the two counts of first-degree criminal sexual conduct (CSC) because the State presented no evidence that he used aggravated force in the commission of the crimes. We agree.

Green was charged with two counts of first-degree CSC pursuant to S.C.Code Ann. § 16-3-652 (1985). Under section 16-3-652, a sexual battery amounts to first-degree CSC if "[t]he actor uses aggravated force to accomplish sexual battery." S.C.Code Ann. § 16-3-652(1)(a) (1985). 1 "Aggravated force" is defined as the use of "physical force or physical violence of a high and aggravated nature to overcome the victim." S.C.Code Ann. § 16-3-651(c) (1985). Aggravated [327 S.C. 585] force also includes the threat of the use of a deadly weapon. Id.

At trial, the State borrowed from the law of assault and battery of a high and aggravated nature (ABHAN) and argued that the aggravated force requirement for first-degree CSC is satisfied if any of the ABHAN's "circumstances of aggravation" are present. We disagree. 2

Assault and battery of a high and aggravated nature is the unlawful act of violent injury to another accompanied by circumstances

Page 265

of aggravation. State v. Frazier, 302 S.C. 500, 397 S.E.2d 93 (1990); State v. Foxworth, 269 S.C. 496, 238 S.E.2d 172 (1977); State v. Small, 307 S.C. 92, 413 S.E.2d 870 (Ct.App.1992). Circumstances of aggravation include the infliction of serious bodily injury, great disparity in the ages or physical conditions of the parties, a difference in sexes, the purposeful infliction of shame and disgrace, taking indecent liberties or familiarities with a female, and resistance to lawful authority. Foxworth, 269 S.C. at 498, 238 S.E.2d at 173; State v. Hollman, 245 S.C. 362, 140 S.E.2d 597 (1965).

As is evident from the above list, many of the circumstances of aggravation for purposes of ABHAN have nothing...

To continue reading

Request your trial
25 practice notes
  • United States v. Montes-Flores, No. 12–4760.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 26 Noviembre 2013
    ...prerequisite to an ABHAN conviction.”). Likewise, force against the victim is not required to sustain an ABHAN conviction. State v. Green, 327 S.C. 581, 491 S.E.2d 263, 265 (Ct.App.1997). Because ABHAN can be committed with or without force—and even when force is involved, ABHAN can be comm......
  • State v. Brown, No. 25863.
    • United States
    • United States State Supreme Court of South Carolina
    • 30 Agosto 2004
    ...that defendant grabbed victim, forced her into woods, and ripped her clothes off in effort to commit sexual battery); State v. Green, 327 S.C. 581, 491 S.E.2d 263 (Ct.App.1997) (reversing denial of defendant's directed verdict motion on charge of first-degree CSC where record contained no e......
  • State v. Patterson, No. 3046.
    • United States
    • Court of Appeals of South Carolina
    • 20 Septiembre 1999
    ...ABHAN conviction. Id. Further, a conviction for ABHAN may be sustained even if no real force was used against the victim. State v. Green, 327 S.C. 581, 491 S.E.2d 263 In ruling on a motion for directed verdict, the trial court is concerned with the existence or nonexistence of evidence, not......
  • State v. Shands, Appellate Case No. 2015-001199
    • United States
    • Court of Appeals of South Carolina
    • 13 Junio 2018
    ...of shame and disgrace, taking indecent liberties or familiarities with a female, and resistance to lawful authority.[8 ] State v. Green , 327 S.C. 581, 585, 491 S.E.2d 263, 264–65 (Ct. App. 1997) (internal citations omitted). In light of our supreme court's discussion in King , we find the ......
  • Request a trial to view additional results
25 cases
  • United States v. Montes-Flores, No. 12–4760.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 26 Noviembre 2013
    ...prerequisite to an ABHAN conviction.”). Likewise, force against the victim is not required to sustain an ABHAN conviction. State v. Green, 327 S.C. 581, 491 S.E.2d 263, 265 (Ct.App.1997). Because ABHAN can be committed with or without force—and even when force is involved, ABHAN can be comm......
  • State v. Brown, No. 25863.
    • United States
    • United States State Supreme Court of South Carolina
    • 30 Agosto 2004
    ...that defendant grabbed victim, forced her into woods, and ripped her clothes off in effort to commit sexual battery); State v. Green, 327 S.C. 581, 491 S.E.2d 263 (Ct.App.1997) (reversing denial of defendant's directed verdict motion on charge of first-degree CSC where record contained no e......
  • State v. Patterson, No. 3046.
    • United States
    • Court of Appeals of South Carolina
    • 20 Septiembre 1999
    ...ABHAN conviction. Id. Further, a conviction for ABHAN may be sustained even if no real force was used against the victim. State v. Green, 327 S.C. 581, 491 S.E.2d 263 In ruling on a motion for directed verdict, the trial court is concerned with the existence or nonexistence of evidence, not......
  • State v. Shands, Appellate Case No. 2015-001199
    • United States
    • Court of Appeals of South Carolina
    • 13 Junio 2018
    ...of shame and disgrace, taking indecent liberties or familiarities with a female, and resistance to lawful authority.[8 ] State v. Green , 327 S.C. 581, 585, 491 S.E.2d 263, 264–65 (Ct. App. 1997) (internal citations omitted). In light of our supreme court's discussion in King , we find the ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT